Facts of the case

In July 2003, the Transportation Security Administration (TSA) learned of a potential plot to hijack US planes and briefed the Federal Air Marshals accordingly. Not long after that briefing, the TSA notified the Marshals that all missions on flights from Las Vegas would be cancelled until August. Federal Air Marshal Robert J. MacLean became concerned that the TSA was not appropriately responding to the threat and creating a danger to the flying public, so he contacted an MSNBC reporter about the situation in an attempt to create a public controversy. MSNBC published an article, and several members of Congress joined in criticizing the decision to cancel the missions. That decision was then rescinded. In 2004, MacLean appeared disguised on NBC Night News, and some TSA employees recognized his voice. During the course of the investigation that followed, MacLean revealed his role in the 2003 MSNBC article. This contact was deemed to be an unauthorized disclosure of sensitive security information, and MacLean was removed from his position.

MacLean challenged the determination that he disclosed sensitive security information before the U.S. Court of Appeals for the Ninth Circuit. MacLean argued that the information about the cancellation of missions was not classified at the time he received it and could not be retroactively classified. The Court of Appeals held that the TSA had simply applied regulations already in force in 2003 to determine that information should fall under that classification. MacLean also challenged his removal before the Merit Systems Protection Board (Board) and argued that his actions were protected under the Whistleblower Protection Act (WPA). The Board determined that MacLean's actions did not fall under the WPA because they were explicitly prohibited by law. The U.S. Court of Appeals for the Federal Circuit reversed the Board's ruling and held that MacLean's actions were not explicitly prohibited by law under the WPA.

Question

Does the Whistleblower Protection Act bar an agency from taking enforcement action against an employee who intentionally discloses sensitive security information?

John G. Roberts, Jr.:

I have the opinion of the court in Case 13-894, Department of Homeland Security v. MacLean.

In July 2003, the Department of Homeland Security learned that members of the terrorist group al-Qaeda were planning to attack and hijack airplanes and use them to strike targets in a number of countries, including the United States.

Based on that information the Transportation Security Administration (TSA) summoned all federal air marshals for face-to-face briefings about the hijacking plot.

One of those air marshals was Robert MacLean.

A few days after the briefing TSA canceled a number of missions that air marshals had been scheduled to fly out of Las Vegas.

MacLean, who was stationed in Las Vegas, believed that canceling those missions during a hijacking alert was dangerous and illegal, so he decided to do something about it.

MacLean first asked his supervisor why TSA had canceled the missions.

His supervisor responded that the agency was short on funds and wanted to save money on hotel costs.

A special agent in that office however told him that nothing could be done.

Finally, MacLean told a reporter about the canceled missions and the reporter published a story about them, without identifying MacLean as his source.

The story got people's attention.

Several members of Congress publicly criticized the cancellations and within 24 hours TSA reversed its decision and put air marshals back on the flights.

TSA eventually learned that MacLean had been the source of the disclosure, and when it did, TSA fired him.

MacLean challenged his firing before the Merit Systems Protection Board.

That's an agency set up to hear the grievances of federal employees.

MacLean argued that his activity was protected by a whistleblower statute.

That statute protected employees who disclosed information revealing “any violation of any law, rule, or regulation or revealing a substantial and specific danger to public health or safety.”

But the Board rejected MacLean's argument.

The Board pointed out that the whistleblower statute contained an exception; the employee was not protected for a disclosure that was specifically prohibited by law.

The Board held that MacLean's disclosure was prohibited by such a law.

The Court of Appeals for the Federal Circuit disagreed however and we granted review.

The government argues that MacLean's disclosure was specifically prohibited by law in two different ways.

First, the government points to several TSA regulations that bar the disclosure of security information about federal air marshals, but we conclude that those regulations do not qualify as law under the whistleblower statute.

Throughout that statute, Congress repeatedly used the phrase law, rule or regulation, but Congress did not use the phrase law, rule or regulation in the key statutory language at issue here; it used the word law standing alone.

Now, that suggests that Congress meant to exclude rules and regulations and cover only statutes.

That makes sense.

Interpreting the word law to include rules and regulations which are issued by agencies could defeat the whole purpose of the whistleblower statute.

If law included agency rules and regulations that an agency could exempt itself from the statute merely by issuing regulations prohibiting most whistleblowing activity; but Congress passed the whistleblower statute precisely because it wanted to protect whistleblowers from agency retaliation.